Blumenthal v. Trump

949 F.3d 14

Richard BLUMENTHAL, et al., Appellees

v.Donald J. TRUMP, in His Official Capacity as President of the United States of America, Appellant

No. 19-5237

United States Court of Appeals, District of Columbia Circuit.

Argued December 9, 2019

Decided February 7, 2020

Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Mark R. Freeman, Washington, DC, Michael S. Raab, Martin V. Totaro, New York, NY, and Joshua Revesz, Attorneys.

Elizabeth B. Wydra, San Francisco, CA, argued the cause for appellees. With her on the brief were Brianne J. Gorod and Brian R. Frazelle.

Katharine M. Mapes and Jeffrey M. Bayne, Washington, DC, were on the brief for amici curiae Separation of Powers Scholars in support of plaintiffs-appellees Richard Blumenthal, et al. and in support of affirmance.

Walter E. Dellinger, III, Washington, DC, was on the brief for amici curiae Bipartisan Former Members of Congress in support of appellees.

Ruthanne M. Deutsch and Hyland Hunt, Washington, DC, were on the brief for amici curiae Scholars of Standing, Federal Jurisdiction, and Constitutional Law in support of plaintiffs-appellees.

Harold Hongju Koh was on the brief for amici curiae Former National Security Officials in support of plaintiffs-appellees.

Erica C. Lai, Melissa H. Maxman, and Danielle C. Morello, Washington, DC, were on the brief for amici curiae Certain Legal Historians in support of plaintiffs-appellees and affirmance.

Anthony J. May, Waukegan, IL, and Jean M. Zachariasiewicz, Baltimore, MD, were on the brief for amici curiae Administrative Law, Constitutional Law, and Federal Courts Scholars in support of appellees and in support of affirmance.

Tejinder Singh was on the brief for amici curiae Former Government Ethics Officers supporting plaintiffs-appellees and affirmance.

Colin E. Wrabley, Pittsburgh, PA, and M. Patrick Yingling, Chicago, IL, were on the brief for amici curiae The Niskanen Center, et al. in support of appellees and affirmance of the decision below.

Robert D. Dinerstein was on the brief for amici curiae Professor Clark D. Cunningham and Professor Jesse Egbert in support of neither party.

Before: Henderson, Tatel and Griffith, Circuit Judges.

Per Curiam:

In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution’s Foreign Emoluments Clause (Clause). The district court’s denial of the President’s motion to dismiss begins with a legal truism: "When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a ‘Case’ or ‘Controversy’ under Article III of the United States Constitution, rather than a political dispute between the elected branches of government." Blumenthal v. Trump , 335 F. Supp. 3d 45, 49–50 (D.D.C. 2018). Although undoubtedly accurate, the district court’s observation fails to tell the rest of the story, which story we set forth infra . Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.

I

Troubled that "one of the weak sides of Republics was their being liable to foreign influence & corruption," 1 The Records of the Federal Convention of 1787 289 (Max Farrand ed., 1911), the Framers prohibited "Person[s] holding any Office of Profit or Trust under" the United States from accepting from a foreign sovereign "any present, Emolument, Office, or Title, of any kind whatever" without the "Consent of the Congress."¹ Justice Joseph Story described the Clause as "founded in a just jealousy of foreign influence of every sort," although he found it "doubtful" that "in a practical sense, it can produce much effect" because

[a] patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions.

3 Joseph Story, Commentaries on the Constitution of the United States § 1346 (Boston, Hilliard, Gray, & Co. 1833). The Members allege that President Trump "has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments" and that "[b]y virtue of that financial interest, [he] has accepted, or necessarily will accept, ‘Emoluments’ from ‘foreign States’ while holding the office of President." Second Amended Complaint at ¶ 2, Blumenthal v. Trump , No. 17-1154 (D.D.C. June 26, 2019), ECF No. 83 (brackets omitted). They allege the President’s failure to seek and obtain congressional consent has "completely nullified," id. at ¶ 82, the votes they are authorized to cast to approve or disapprove his acceptance of foreign emoluments. See id. at ¶ 3 ("Because the Foreign Emoluments Clause requires the President to obtain ‘the Consent of the Congress’ before accepting otherwise prohibited ‘Emoluments,’ Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their ‘Consent’ before the President accepts any such ‘Emolument.’ ") (bracket omitted). They further allege that the Clause is "unique." Appellees’ Br. at 6.

First, the Clause imposes a procedural requirement (obtain "the Consent of the Congress") that federal officials must satisfy before they take a specific action (accept "any" emolument from "any ... foreign State"). U.S. Const. art. I, § 9, cl. 8. This requirement of a successful prior vote, combined with the right of each Senator and Representative to participate in that vote, means that every time the President accepts an emolument without first obtaining congressional consent, Plaintiffs are deprived of their right to vote on whether to consent to its acceptance.

Second, the Foreign Emoluments Clause regulates the private conduct of federal officials. Because President Trump is violating the Clause through his private businesses, without the need for government funds or personnel, Congress cannot use its power of the purse—normally the "ultimate weapon of enforcement available to the Congress"—to stop him. United States v. Richardson , 418 U.S. 166, 178 n.11 [94 S.Ct. 2940, 41 L.Ed.2d 678] (1974). Without that tool or any other effective means of forcing President Trump to conform his personal conduct to the Clause’s requirements, [the Members] have no adequate legislative remedy for the President’s denial of their voting rights.

Id. at 6–7.

The Members filed their complaint on June 14, 2017, seeking declaratory and injunctive relief against the President in his official capacity. The President moved to dismiss, arguing that 1) the Members lack standing; 2) no cause of action authorized their lawsuit; 3) they failed to state a claim upon which relief could be granted; and 4) the requested relief, an injunction against the President in his official capacity, violates the Constitution. Statement of Points and Authorities in Support of Defendant’s Motion to Dismiss, Blumenthal , 335 F. Supp. 3d 45 (D.D.C. 2018) (No. 17-1154), ECF No. 15-1. The district court bifurcated the issues, addressed standing first and held that the Members "sustained their burden to show that they have standing to bring their claims." Blumenthal , 335 F. Supp. 3d at 54. The President then moved to certify the district court’s standing order for interlocutory appeal under 28 U.S.C. § 1292(b), Defendant’s Motion for Certification of the Court’s September 28, 2018 Order Pursuant to 28 U.S.C. § 1292(b), Blumenthal v. Trump , 382 F. Supp. 3d 77 (D.D.C. 2019) (No. 17-1154), ECF No. 60, which motion was denied on June 25, 2019, 382 F. Supp. 3d at 83. While the certification motion was pending, the district court denied the remainder of the President’s motion to dismiss, holding that the Members had an implied equitable cause of action for injunctive relief and that they had stated a claim under the Clause. Blumenthal v. Trump , 373 F. Supp. 3d 191, 207–09 (D.D.C. 2019). The President again moved for interlocutory appeal, Motion for Certification for Interlocutory Appeal, 382 F. Supp. 3d 77 (D.D.C. 2019) (No. 17-1154), ECF No. 71, and this motion was also denied, 382 F. Supp. 3d at 77. Having exhausted his options in district court, the President petitioned our court for a writ of mandamus. Petition for a Writ of Mandamus to the United States District Court for the District of Columbia & Motion for Stay of District Court Proceedings Pending Mandamus, In re Trump , 781 F. App'x 1 (D.C. Cir. 2019) (No. 19-5196). We denied the petition without prejudice but remanded the matter "for immediate reconsideration of the motion to certify." In re Trump , 781 F. App'x at 2. On reconsideration, the district court certified both dismissal denials for interlocutory appeal and stayed its proceedings. Blumenthal v. Trump , No. 17-1154, 2019 WL 3948478, at *3 (D.D.C. Aug. 21, 2019). We then granted the interlocutory appeal. In re Trump , No. 19-8005, 2019 WL 4200443, at *1 (D.C. Cir. Sept. 4, 2019).

On appeal of a dismissal denial, we review the district court’s legal determinations de novo and assume the truth of the plaintiff’s material factual allegations. Z Street v. Koskinen , 791 F.3d 24, 28 (D.C. Cir. 2015). The district court’s jurisdiction "aris[es] under the Constitution ... of the United States." 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(b).

II

"[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Raines v. Byrd , 521...